Monday, 30 March 2015

‘WAR CRIMES’ IN SRI LANKA - What The International Experts Say – 4

March 24, 2015

Sir Geoffrey Nice and Rodney Dixon on Ban Ki Moon’s report on SL

Sir
Geoffrey Nice QC worked at the International Criminal Tribunal for the
Former Yugoslavia (ICTY) and led the prosecution of Slobodan
Milošević. He has also worked for the International Criminal Court in
the Hague.

Rodney Dixon QC has prosecuted and defended cases
before the International Criminal Tribunal for the former Yugoslavia
(ICTY), the Rwanda Tribunal (ICTR), the Special Court for Cambodia, the
War Crimes Chamber for Bosnia and Herzegovina and the Special Court
for Sierra Leone.

(This is an edited and abbreviated
version of a legal opinion. The language and the title has been
modified to suit a general readership. Reducing a detailed legal
opinion to a newspaper article does not do justice to the experts
concerned. We do so only in order to keep the Sri Lankan public
informed of the thinking of eminent international experts which may
differ in significant ways from the propaganda that the public often
hears from interested parties. The complete legal opinion is available
at http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121959)

This
is a Review of the Report of the UN Secretary-General's Panel of
Experts on Accountability in Sri Lanka. The Panel found that there were
credible allegations which indicated that both the Government of Sri
Lanka and the LTTE had committed violations of international
humanitarian and human rights law. In relation to the government, the
Panel found ‘credible allegations’ of shelling in the Vanni during the
final stages of the war between September 2008 and May 2009 which it is
alleged caused civilian deaths. The figure for civilian deaths that
the Panel relies on is a range of up to 40,000 which it stated cannot
be ruled out, but which requires further investigation.

Sources
for this up to 40,000 figure are not identified in the Report. The
figure is widely disputed. There is no clear breakdown given in the
Report of where and how these alleged deaths occurred and of how it
might be verified that they were civilian deaths in each particular
case or of who was responsible for each of these deaths.

The
Panel concluded in relation to the LTTE that there are credible
allegations that approximately 300,000-330,000 civilians were kept
hostage by the LTTE in the Vanni and prevented from leaving the area.
They were used as human shields by the LTTE and as a strategic human
buffer to the advancing Sri Lanka Army. The Report states that these
civilians were forced to join the ranks of the LTTE to dig trenches and
prepare other defences, thereby contributing to blurring the
distinction between combatants and civilians. The Report notes that the
LTTE fired artillery in proximity to large groups of civilians and
fired from civilian installations including hospitals. The Report
concludes that many civilians were sacrificed on the altar of the LTTE
cause and its efforts to preserve its senior leadership. The Report
fails, however, to offer any figures for the number of civilians
allegedly killed or injured by the LTTE and provides no analysis of any
kind of the precise circumstances in which these deaths and incidents
allegedly occurred.

The Panel's findings in respect of the
alleged criminal violations fall well short of the legal standards
usually associated with a rigorous and impartial inquiry into evidence
in order to make such findings. The evidence and information on which
the Report's findings are based are virtually all un-sourced, whether
in the main body of the Report or in the footnotes and annexes. As the
full body of evidence that was taken into account is unknown, it is
impossible to know what has been taken into account and whether any
particular piece of evidence which may be important to counter an
allegation has been overlooked. This makes the task of conducting any
further investigation – as recommended by the Report – much more
difficult. Without a 'starting point' of existing evidence where should
the new investigator begin a search?

The repeated assertion
that civilians were shelled by the Sri Lanka Army in various locations
and were unlawfully killed as a matter of international law is not
deconstructed in order to allow the reader to form a reasoned opinion
as to the factual or mental state requirements of the alleged crimes.
In particular, there is no analysis offered in the Report of (i) the
evidence of the circumstances of each of these alleged attacks, (ii) the
presence of any legitimate military targets and objects, (iii) how it
can be determined on the evidence from where the attacks emanated, and
(iv) whether any of those attacked were civilians, and if so in what
proportion.

The Panel acknowledges that the civilians in the
Vanni were hostages of the LTTE and used by them as human shield and
as combatants to fight the Sri Lanka Army and were also targeted by the
LTTE including in the very areas and hospitals that the Government is
accused of shelling. In these circumstances how is the Panel able to
find that the Government was nevertheless responsible for killing these
same civilians unlawfully? The Panel's approach also assumes that the
persons killed, whatever the number, were in fact civilians as opposed
to persons who had taken up arms voluntarily or under compulsion on the
side of the LTTE.

The Report does not confine itself to
saying, as it should, given its approach to the evidence that there are
many disputed allegations which require further investigation. On the
contrary, it positively claims that the allegations are credible and
reliable. Indeed, as a result of publication of the Report there have
been many subsequent statements, reports and recommendations which have
regarded the Report's findings as conclusive. Herein lies the danger –
whether intended or not – of the claims that are made in the Report
about the criminal responsibility of the Government and its forces.
Without a robust and disciplined investigation with legal analysis of
the evidence, properly sourced and carefully scrutinised, tested and
weighed according to the highest legal standards, it can be very risky
to publish findings of the sort set out in this Report, even if the
Report states formally that any allegations made are not proven.

Panels
of experts established by the UN should be on guard against the risk
that unsourced assertions or allegations appearing in a sequence of
reports allow the development of 'false collateral' of one report by
another that may have been constructed on the same un-sourced
allegations. Narratives develop in opinion-formers and decision-makers,
none of whom may have the time to read, let alone rigorously to
analyse, reports that, like the instant Report, are often hundreds of
pages long.

Such reports can be relied on within the
international community to draw conclusions which are in fact unproven
but which are repeated and reproduced over time. The reports become the
accepted narrative of a conflict and of those responsible for criminal
behaviour without independent investigation and verification of the
'facts', let alone any judicial findings following a proper legal
inquiry. A cornucopia made of insubstantial elements is itself
insubstantial. International courts and tribunals have not placed
reliance on reports of this nature as being probative evidence to prove
allegations in trials for war crimes and crimes against humanity. As
set out in the jurisprudence of these courts, the present Report would
be of virtually no value to a court seeking to establish the truth, and
it should not be given any more weight outside of the courtroom.

The
Panel consulted several sources, but the raw evidence from these
sources is not made available in the Report. In particular, the
statements and other evidence (for example documents, videos etc if any
were produced by witnesses) of those who were interviewed and
consulted were not submitted with the Report. Indeed, witness
statements — assuming there were any — are not even quoted anonymously.
The Panel stressed that the only allegations included in the Report as
credible are those based on primary sources that the Panel deemed
relevant and trustworthy. However, it is impossible to discern from the
Report which primary sources were decisive for its findings.

This
central weakness in the Report is exacerbated by the standard of proof
that it professed to adopt. A non-legal analysis – as by a journalist
or academic, can use any standard he likes: 'A felt sure', 'A felt
reasonably confident', 'A was absolutely convinced', 'A had my
suspicions' etc. In a document dealing with alleged criminality on a
major scale – that names those who may be responsible – it might be
thought better to apply the standards of proof recognised by
international criminal courts. This is something the Report failed
properly and consistently to do.

The Panel's findings could
have very serious consequences for Sri Lanka and its leaders but are
based on the very lowest threshold of proof while using the language
and discourse of international courts to introduce these findings
without adopting or seeming to pay any regard to the practices of these
courts that would reveal and explain the evidence on which the Panel
has proceeded to its conclusions. The neutral observer might find it
hard to overlook the fact that this has all been done in a time when —
right or wrong — there has been substantial publicity adverse to the
Sri Lankan government. It would be naive not to recognise that in such
times it is easier to advance conclusions in line with publicity
without proper evidential support but in the hope, and with the
reasonable expectation, of a busy world accepting what is asserted.

The
Panel notes that a number of credible sources have estimated there to
have been as many as 40,000 civilian deaths. None of these sources is
named in the Report, yet the figure is used in the Report and has been
relied on repeatedly after publication of the Report as the correct
figure with which to accuse the Government. It is well-known that there
are other sources which estimate the figure to be much lower, but
these are not mentioned in the Report. At the very least it would be
expected that a UN report of this type should set out the various
competing accounts. The UN Country Team figure of 7,721 (up until 13
May 2009) is mentioned in the Report but then disputed by the Panel
without it explaining how it is that over 30,000 people could have been
killed in the final days of the war up until 18 May 2009 if the figure
of 40,000 is ever to be correct and accurate. The Report provides no
concrete evidence to support the considerable leap from the UN Country
Team's figure of less than 10,000 to the substantial number of 40,000
adopted by the Report.

This Review has thus focused on the
Report's analysis or rather its lack of rigorous analysis of the
underlying alleged violations by the parties to the conflict. The
Report claims that the government of Sri Lanka has failed to pursue
effective accountability measures, but this is to put the cart before
the horse as any assessment of the Government's post-conflict inquiries
and initiatives depends entirely on what the available evidence shows
about the nature and extent of any transgressions.